Robert William McAuley v Tradelink Plumbing Services
[1999] QDC 9
•5 February 1999
IN THE DISTRICT COURT
HELD AT BRISBANE
QUEENSLAND
[Robert William McAuley v Tradelink Plumbing Services & Ors]
[Before Brabazon Q.C. DCJ]
Plaint No 2666 of 1998
BETWEEN:
ROBERT WILLIAM McAULEY
Plaintiff
AND:
TRADELINK PLUMBING SUPPLIES
First Defendant
AND:
CRANE DISTRIBUTION LIMITED
Second Defendant
AND:VACC INSURANCE
Third Defendant
JUDGMENT
Judgment delivered: 5 February 1999
Catchwords: Motor Accident Insurance Act 1999 - sections 34, 37 & 39. Effect of non-compliance. “nunc pro tunc”.
Counsel: Mr M Howe for the plaintiff
Mr K Holyoak for the third defendant
Solicitors: Baker Johnson for the plaintiff
Gadens for the third defendant
Hearing Date(s): 21 December 1998
IN THE DISTRICT COURT
HELD AT BRISBANE
QUEENSLAND
Plaint No 2666 of 1998
BETWEEN:
ROBERT WILLIAM McAULEY
Plaintiff
AND:
TRADELINK PLUMBING SUPPLIES
First Defendant
AND:
CRANE DISTRIBUTION LIMITED
Second Defendant
AND:
VACC INSURANCE
Third Defendant
REASONS FOR JUDGMENT - JUDGE BRABAZON Q.C.
Delivered the 5th day of February, 1999
Mr McAuley wishes to claim for damages for personal injuries caused by a motor vehicle accident. He faces an obstacle, created by non-compliance with s.37 of the Motor Accident Insurance Act 1984 in that a notice required by that section was given after the nine months allowed.
This application requests the court to extend the time within which Mr McAuley can comply with the requirements of s.37.
The Facts
This is an interlocutory application. The facts are asserted in affidavits. They have not been finally assessed by the court. The following facts are taken to be true, for the purposes of this application.
On Thursday 16th November 1995 Mr McAuley was employed by the Underwood office of Tradelink Plumbing Supplies. He was driving a Tradelink vehicle when it ran off the road. The road was wet and he lost control of the vehicle. He was taken to hospital by ambulance. Police attended the scene, and made a report. He went to work on the Saturday morning, but was then away from work until 3rd December. He suffered pain. While away, he saw two doctors at his usual family practice, and had several visits to a physiotherapist. He lodged an application for workers’ compensation on 21 November.
While he was at work on Saturday, 18th November, a workmate, Alan Dear, explained to him that the tyres on the vehicle that he had been driving were bald. He said that the condition had been reported by Dear to an area manager, but the tyres had not been changed by the time of the accident.
At a later time he spoke to another workmate, Gordon Daniels, about the bald tyres. His information corroborated, in effect, what Dear had said. The later information also indicated that the defective tyres were changed not long after his accident.
He continued to suffer symptoms from his injuries. His WorkCover application resulted in an appearance before the Workers’ Compensation Tribunal on 28th October 1995. By that time, he had obtained advice from solicitors, Robert Burns & Co. Those solicitors advised him that he had three years within which damages for personal injury could be claimed. Neither the solicitors’ letter of 30th October 1996 or a following letter of 18th February 1997, suggested that there was any constraint, other than the three year limitation period. The first letter also mentioned his instructions, that the vehicle was thought to have defective rear tyres at the time of the accident. In that letter, reference was made to his “potential claim for damages against your employer”. He was advised that he might have a claim for damages against the employer. A proper investigation of liability was suggested before substantial sums of money were spent.
Mr McAuley was anxious about his position. He consulted another firm of solicitors, I R Shepherd & Associates, on 2nd December 1996. Those solicitors were aware of the requirements of the MAI Act. On 8th January 1997 they wrote to VACC Insurance, the third party insurer and third defendant in this action, mentioning the requirements of s.34 of the Act. Some brief details about Mr McAuley and his accident were supplied.
Those solicitors had noted s.34(1)(b) which required a person in Mr McAuley’s position to notify the third party insurer within one month after that person first consulted a lawyer about the possibility of making a claim for damages. For that reason, an explanation for the delay was given - that he first consulted a lawyer in that firm on 2nd December, that he was unaware of the registration and insurance details of the vehicle he was driving, and that his new solicitors had to make the usual searches.
The evidence here does not disclose the response from VACC, if any. Then, on 6th March 1997, Mr McAuley signed and swore a statement, headed “Personal Injury Notice of Claim”. That notice was received by VACC Insurance on 15th April 1997.
Therefore, the notice did not comply with s.37(2) of the Act, which required that it be given within nine months after the motor vehicle accident, or the first appearance of symptoms of the injury. As his symptoms arose at the time of the accident, that period had expired on 16th August 1996.
VACC Insurance responded on 9th May 1997. The letter stated that it was not satisfied that the s.37 notice complied with the requirements of the Act - it was not given within nine months, and did not contain an explanation of the delay, as required by s.37(4) of the Act. The letter continued:
“We will allow you until 30th May 1997 to provide a satisfactory explanation for the late notification to remedy the non-compliance before the expiration of one month of (30th May 1997). We will further respond as required by s.39(1)(b).”
In a letter of 30th May 1997, Messrs Shepherds responded. The explanation for delay given in their letter of 8th January 1997 was reiterated. In addition, it was asserted that it was only because of the continuation of symptoms after his WorkCover claim was finalized that he sought information concerning any other remedy available to him, and that he was unaware of the requirement to submit a notice within nine months of the accident.
VACC Insurance responded by its letter of 17th July 1997 (rather than within the one month allowed by s.39(1)(b)). Liability in respect of the incident was denied. The letter went on:“Should your client proceed, the issue of late notification will be raised.”
The letter also continued to provide information on the question of the tread depth on the vehicle’s tyres. It concluded by saying, “If your client has evidence to the contrary, please provide same to us.”
Then followed an argumentative exchange of correspondence between Mr McAuley’s new solicitors (Messrs Baker Johnson) and VACC Insurance. The subject of the exchange was the presence, or absence, of bald tyres on the vehicle at the time of the accident. In short, Messrs Baker Johnson asserted that the two workmates, Messrs Dear and Daniels, had given statements saying that the tyres were bald, while VACC Insurance responded with the information that new tyres had been fitted to the vehicle not long before the accident, and that an inspection of the vehicle on 27th November 1995 showed 4mm of tread - over the legal minimum depth. In its letter of 10th December 1997, VACC confirmed its denial of liability. It noted that it was “heavily prejudiced by an inability to make early investigations into the allegations he makes (of the bald tyres). Your client has failed to comply with the provisions of the Motor Accident Insurance Act in this regard and we intend to strenuously defend the action on the basis of the information available to us, should proceedings be instituted.”
On 17th September 1998, Messrs Gadens, lawyers, wrote on behalf of VACC. The question of the delay of more than nine months was repeated.
On 23rd June 1998 a plaint had been filed, commencing proceedings in this court, despite the procedural difficulties. This application was filed on 6 November 1998. The three year limitation period expired on 16 November 1998.
Finally, mention should be made of two things about which there is no evidence. First, there is no evidence about VACC Insurance’s receipt or non-receipt of any written notice about an accident causing personal injury, required to be given by Tradelink within one month - see s.34(1)(A). Secondly, there is no evidence from VACC Insurance, suggesting any actual prejudice caused by the passing of time, or an inability to investigate the issue of the bald tyres.
The Provisions of the MIA Act
A photocopy of the relevant provisions is attached to this judgment.
Chronology
A chronology of the relevant events is also attached to this judgment.
The Decided Cases
These propositions have now been established by the decided cases:
Both in New South Wales and Queensland it has been held that provisions such as s.37(1) and s.39(5) are mandatory. Where they have not been complied with, then valid legal proceedings cannot be commenced. If they are commenced, then they are of no legal effect. See Serhan v Serhan (1996) 24 MVR 4, Young v Nominal Defendant (Court of Appeal No.225 of 1987, judgment 22nd May 1998 unreported) and Couling v Nelson (White J, Supreme Court of Queensland, No. 9521 of 1998, judgment 4th September 1998, unreported.)
Where proceedings are commenced before the requirements in s.39(5) have been met, leave to bring the proceedings despite non-compliance with the Act requirements may be given nunc pro tunc - that is, given now but relating back to the commencement of proceedings. That has been held by Forde DCJ in Hardacre v Johnson & Suncorp General Insurance Ltd (D.C. No. 5102/97, judgment 27/1/98, unreported) and by Wilson J in McKelvie v Page & Ors (Writ 2801 of 1998, judgment 18th September 1998, unreported.)
The Non-Compliance
The Personal Injury Notice of Claim did not comply in two respects - it was given outside the allowable nine months, and did not contain an explanation of the delay (there were other omissions as well, but no point is taken about them).
It is immediately apparent, that deficiencies in the notice may be remedied but that it is impossible to remedy the undue passing of time. Once an explanation for the delay is given, then VACC Insurance had the choice of waiving the failure to comply with the nine month limit, or refusing to waive it. It is clear enough from the VACC Insurance letter of 17 July 1997, that the issue of late notification was not waived.
The letter of 9th May did not allow Mr McAuley the required one month for a response. However, as his solicitors replied promptly on 13th May and did not complain about the twenty-one days allowed, it can be taken that they waived the requirement which was for their client’s benefit. Also, the VACC Insurance response of 17th July 1997 was out of time. However, the legislation does not provide for any particular consequence of that slowness.
As notice of the claim was given to VACC Insurance, which did not waive compliance with the actual requirements, and denied liability, the plaintiff had no right to bring proceedings in this Court. The plaint was ineffective.
However, an application to the court can be made to remedy the position. See s.39(5)(b). There is no possibility of a declaration that the notice of the claim has been given as required under s.37, or that Mr McAuley is taken to have remedied his slowness. Rather, he now asks leave to bring the proceedings despite non-compliance with the requirements of the Act - see s.39(5)(c).
Some mention was made of s.57 being a barrier to the present application for leave to bring the proceedings. However, as the application was filed before the expiry of the limitation period, and as the s.37 Notice was given to the insurer, s.57 presents no obstacle to the present application.
Therefore, the plaintiff asks for an exercise of the court’s discretion in his favour. These appear to be the relevant matters which should be taken into account:
(a)Mr McAuley was not personally aware of the requirement to give a notice within nine months, and neither were his first solicitors aware of it;
(b) The notice was given once his second firm of solicitors was consulted;
(c)In any case, the tyres on the vehicle were apparently changed quite quickly after the accident, and well before the expiry of the nine month period;
(d) VACC Insurance had the benefit of statements from Messrs Dear and Daniels, with regard to the state of the vehicle’s tyres;
(e)VACC Insurance does not rely on actual prejudice suffered by it;
(f)There is no need to make an assessment of the plaintiff’s prospects of demonstrating liability - it is sufficient to say that the presence of such bald tyres could well be evidence of negligence on the part of Tradelink;
(g) After liability was denied, there was a continuing exchange of information about the accident;
(h) There are procedural faults on both sides.
Those factors point clearly enough to an exercise of discretion in Mr McAuley’s favour.
It is ordered that the plaintiff be granted leave to bring the proceedings of 23rd June 1998 despite non-compliance with the requirements of Division 3 of the Motor Accident Insurance Act 1994.
Further submissions may be made about the costs of this application.
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